Saturday, April 25, 2009

Lambda Legal gets big win for children of disabled parent...but the case shows the risk of parentage orders

Lambda Legal announced this week that the Social Security Administration has agreed to grant child benefits to the two children of a father receiving social security disability benefits. The issue concerned recognition of the parent-child relationship based on two California parentage orders declaring Gary Day the father of his two children. Day now lives in Florida.

SSA never issued a ruling on the children's claim for benefits, in spite of two letters from Lambda Legal. It simply cited "legal issues and policy questions" in holding up an initial determination. Without a determination, Day could not appeal. More than two years after Day's application, in May 2008, Lambda filed a lawsuit in federal court in the District of Columbia. The letter this week granting the benefits successfully concludes the litigation.

Eighteen months ago, in another case, the Department of Justice issued a memorandum opinion authorizing child benefits to the child of a nonbiological mother who was the child's legal parent because she was in a Vermont civil union with the biological mother. The opinion concluded that recognition of the parent-child relationship did not violate the Defense of Marriage Act.

Lambda's complaint on behalf of Gary Day and his children demonstrated that a parent-child relationship existed based on five different legal criteria in social security laws.

This case highlights an ongoing concern about recognition of parentage orders for nonbiological parents. If Day had an adoption decree naming him the father of the children it is unlikely he would have faced difficulty in obtaining benefits for them. But lawyers are increasingly seeking parentage orders rather than adoption decrees because they are a more accurate reflection of the family's situation. A person does not adopt his or her own children. So when a lesbian couple plans a child through donor insemination or a gay male couple has a child through surrogacy, the intended parents consider themselves the child's parents the whole time. It's analagous to a married heterosexual couple having a child conceived through donor semen; the husband does not have to adopt the child.

Parentage orders can also be obtained more quickly and without the home study that adoption proceedings usually require.

Somewhat ironically, a paternity order should be more secure than a parentage order granted to a nonbiological mother. That's because all states -- in their efforts to obtain child support for children born to unmarried women -- have strict laws requiring that a paternity order from another state receive Full Faith and Credit. Some states may think they need not extend that recognition to an order establishing motherhood.

This is a very new area of law. We lawyers hope that someday parentage orders will be as secure as adoption decrees and that someday laws will establish parentage without needing a court order of any kind...and that those means of establishing parenthood will also be universally recognized. The Day case is a step in the right direction.

2 comments:

Over the past few months I’ve participated in the marches and vigils for gay rights sponsored by various groups such as Equality California, the Human Rights Campaign, and the Courage Campaign. It has been great to see the massive turnouts and outpouring of support. But after leaving I felt we hadn’t accomplished much other than raise our voices in unison to the media. However, this past weekend I took part in a project to build a house sponsored by the Empowering Spirits Foundation and was blown away. Their goal is to promote equality by working alongside individuals who were fairly conservative and mostly against homosexuals. In doing so you get to know the people and eventually begin conversing about our differences in a positive way. I realize that not everyone will open up, but for the few that did you could see their views change as they asked more questions and realized the stereotypes were mostly wrong. One lady even said to me “it’s been great speaking with you, you are the first gay person I’ve met and not what I expected.” It was great to not only make a difference in the community, but feel like you truly made an impact in changing someone’s opinion of gays.

I encourage anyone looking to get involved in the fight for lgbt equality to look up the Empowering Spirits Foundation. They have a truly rare approach to the struggle for gay rights, which in my personal opinion will greatly encourage equality than just marching in a parade.

BTW, here is a link to their Facebook fanpage - http://www.facebook.com/pages/Empowering-Spirits-Foundation/49288966338

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.